In this paper, we identify the influence of formal equality—and more specifically, formal gender equality (that is, treating men and women the same)—in central areas of major Australian family law reform over the past 20 years. Given the influence of formal equality and our concerns regarding this trend, we consider whether equality-based arguments should be abandoned entirely, at least in the family law context, and explore alternative approaches that could reframe the debate.

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What does the issue of sexual violence against women have to do with Equity and Trusts law? Most students and scholars of the subject would say “very little”. In this paper I argue, on the contrary that the issue of gendered violence does indeed arise in this subject-area but it is usually rendered invisible by an overly narrow view of what counts as appropriate legal scholarship and pedagogy. The aim of this paper is a modest one: it is to take one narrowly defined “legal” method — case analysis — and turn it on its head so that it forms the basis of a critical, context-sensitive pedagogy which makes space for an exploration of the issue of sexual violence within this subject-area. By employing what I call “critical case analysis” in three doctrinal areas of Equity and Trusts law — undue influence, unconscionable dealing and fiduciary relationships — I hope to show that issues of sexual violence do arise in this subject; that these issues are often omitted or inadequately dealt with by courts and traditional scholars; and that critical case analysis can be a useful pedagogical tool in our classrooms for exposing and exploring such issues.

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